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Harcher v. Hurley

Decided: November 1, 1935.


On quo warranto.

For the relators, William J. Rubin.

For the defendant, Patrick J. O'Connell.

Before Justices Trenchard, Heher and Perskie.


The opinion of the court was delivered by

PERSKIE, J. The stipulated facts disclose that the relators, and nineteen other patrolmen, were dismissed from the police department of the city of Bayonne, on January 5th, 1934, for economic reasons. That, we have held, was proper. Donovan v. Board, &c., Bayonne, 12 N.J. Mis. R. 792; 175 A. 143. Relators, under the circumstances and for the reasons more fully hereinafter set forth, challenge the office of patrolman now held by defendant.

It appears that in pursuance of the provisions of chapter 148, Pamph. L. 1933, p. 299, and chapter 114, Pamph. L. 1934, p. 310, a "special list" of the patrolmen dismissed, as aforesaid, was prepared. Relators, Joseph Z. Poparteys and Joseph S. Harcher, are first and seventh, respectively, on that list. These acts also provide, inter alia, that in the event "any new appointments" are made policemen or firemen removed or demoted for reason of economy "shall first be appointed thereto before any other person is appointed."

Defendant was also a patrolman of the police force of the city; he was first appointed on July 27th, 1926. But on April 18th, 1933, he was dismissed by Jerome J. Brady, then director of public safety, because of intoxication while on duty. On December 10th, 1934, almost twenty months after his dismissal and without any claim that it was illegal, defendant made application to the then director of public safety, Dennis O'Leary, for reinstatement. We are told that in pursuance of that application a hearing was had; although no record thereof was made or otherwise submitted. It does, however, appear that the director and the defendant had some sort of a conversation; but the details thereof were not recorded nor are they otherwise supplied in the record. There was a bible on the director's desk indicating that it was used to administer the oath of office to the defendant. That is not challenged. It was undoubtedly so used. But the statement that there was a hearing on the application for reinstatement is not very convincing or persuasive. At all events, the record is barren of any proof which formed the basis for the action of director O'Leary, who, on December 14th, 1934, certified to the board of commissioners that he

had "appointed, reappointed and/or reinstated John J. Hurley [defendant herein] to the office or position of patrolman * * *." The defendant has since December 17th, 1934, continued on the police force.

Each relator claims that the stated action of the director was, and the resultant holding of that office by the defendant is, in contravention of the acts of 1933 and 1934, supra. Harcher does so in pursuance of leave granted by Chief Justice Brogan "as a private citizen and taxpayer only." Poparteys does so on the ground that since defendant was discharged for reasons other than economy and his (defendant's) name was not on the "special list," and he, Poparteys, being first named on that list, was entitled to the office and should have been first appointed thereto.

Defendant, however, resists these claims on the grounds that the pertinent provisions of the acts in question apply only to "new appointments;" that he holds office not by virtue of a new appointment but rather by reason of having been merely reinstated to his former office.

First: Does the defendant hold office by virtue of having been reinstated thereto or does he hold office as a new appointee? To answer this alternative question, we look first to the definition of the word reinstatement. In 53 C.J. 1183, it is defined as "the act of reinstating; reinstatement; renewal; restoration to a former position, office or rank." And Webster's International Dictionary defines "reinstate," "to place again in possession or in a former state; to restore to a state from which one has been removed; to instate again; as to reinstate a king in the possession of the kingdom." Let it be marked that the police surgeon's certificate and report of the physical examination of the defendant is identical in form with those made in 1926, when the defendant was first appointed to the force; there was, of course, no allowance of back pay in the purported reinstatement and there could not have been any such allowance since the ...

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